Until just this month no one was allowed to sue the cruise lines for medical negligence. Ever! It didn’t matter if the cruise line doctor completely butchered you, the cruise line was totally exempt from responsibility (remember, this is the only doctor you could possibly choose on the ship as you are trapped there if you’re sick or injured!). That all changed on November 10, 2014, when the United States Court of Appeals for the Eleventh Circuit (which is the last appellate court right below the US Supreme Court) issued a groundbreaking new decision that allows cruise passengers the ability to sue the cruise line if they have been injured due to medical malpractice while onboard. The decision in Franza v. Royal Caribbean Cruises, LTD. overruled what has been called the “Barbetta rule.” The Barbetta rule came from a case called Barbetta v. S/S Bermuda Star. The rule effectively immunized a shipowner from a legal concept called “Respondeat Superior,” which is Latin for “let the master answer.” This legal concept holds an employer responsible for the acts of its employees. That meant that when the ship’s employees or doctor(s) rendered negligent medical care to its passengers the shipowner was not responsible! Barbetta also gave this immunity no matter how clear the ship owner’s control over the medical staff or how egregious and awful the negligence. Seems a bit crazy. You can have a nurse and doctor who absolutely are 100% negligent and cause horrible damages to a person, or even kill a person, and the ship is totally off the hook!
In the new Franza case, an elderly cruise passenger fell and hit his head while on Royal Caribbean’s Explorer of the Seas while it was docked at a port in Bermuda. The passenger was brought to the ship’s infirmary. He was given medical care by the ship’s medical staff. Over the next few hours, the passenger got worse. The doctors did not act properly to diagnose obvious head trauma. The care was so bad that the passenger died from failure to get any bit of reasonable medical care. The ship’s nurse completely missed the passenger’s head trauma and did not order any diagnostic tests or scans, which were easily available. She then released the passenger with no treatment and told him to go to his room and rest. The infirmary doctor then failed to check on the passenger later, as protocol demanded, and never saw the passenger over the next four hours. The passenger later died, and his daughter sued Royal Caribbean. She did so even though the Barbetta Rule should have eliminated their legal case.
Royal Caribbean did what they always do in this type of lawsuit and tried to file motions to get the case thrown out. The case was filed in the Federal District Court for the Southern District of Florida in Miami because that is where your ticket forces you to sue. (As an aside, Carnival and Norwegian Cruise Lines also force you to use this court, which is great for our clients because it is our primary courthouse.)
The Federal Trial Court did abide by the Barbetta Rule and dismissed Ms. Franza’s case. Ms. Franza then appealed that decision to the Eleventh Circuit Appellate Court. She raised some important questions, which the court had never decided: Whether a passenger might invoke the principles of “actual agency,” or “apparent agency,” to impute liability on the cruise line for the medical negligence of its ship’s onboard nurse and doctor. The Court decided that BOTH theories were available to the plaintiff!
Vicarious liability claims (imputing liability onto someone other than the negligent actor) are highly factual and case-specific. The Eleventh Circuit stated in the Franza case that “[m]uch has changed in the quarter-century since Barbetta. As we see it, the evolution of legal norms, the rise of the complex cruise industry, and the progression of modern technology have erased whatever utility the Barbetta rule once may have had. We thus decline to adopt the Barbetta rule, and find that the complaint in this case plausibly establishes a claim against Royal Caribbean under the doctrine of actual agency, as well as a claim under the principles of apparent agency.”
I am sure the legal teams at the cruise lines are frantic about this new ruling. Ms. Franza’s case will now go back to the trial court in Miami. Only time will tell if justice will be served for Ms. Franza’s father’s unnecessary death.
Agency Theory
To us, it is not surprising that the court ruled this way. What is surprising was the Barbetta decision in the first place. As we maritime lawyers know, it has been clear law for a century that maritime owners/captains are responsible for the negligence of their onboard agents. In the past, “agency theories” have been used against the cruise lines in circumstances where a passenger was injured while on an excursion. (We do a lot of excursion cases, and the cruise line is always trying to say they have no connection to the excursion trip providers. Well, in most cases, they are completely wrong!) These excursions are often a third-party vendor on some small Caribbean island with little to no money to collect from if the passenger is severely hurt. Agency theory allows the injured party to sue the cruise line to help pay for their injuries.
The Franza case is the first case to successfully use “agency theory” in a medical malpractice case.
Keep in mind, proving the “actual agency” theory could be difficult. To prove “agency” you must show all of the following:
- Acknowledgment by the principal (cruise line) and the agent (excursion operator or ship medical staff) will act for the principal
- The agent’s acceptance of the undertaking
- The principal’s control over the agent’s acts
Proving “apparent agency” requires a showing of all of these details:
- Representations by the principal that the agent is authorized to act on its behalf
- A reasonable belief of the existence of the agency relationship
- Reasonable reliance on such belief to the plaintiff’s detriment
Ms. Franza and her attorneys will have to prove agency or apparent agency. Then they will have to also prove actual medical negligence. If they can do both then they can get justice through a trial for her father’s death. This will be an uphill battle because Royal Caribbean has a lot of lawyers and money to fight at their disposal; they are not going to just take a big hit.
Cruises are big business.
Sadly, even if Ms. Franza is able to win justice for her father and a huge verdict is rendered, this will mean little to a corporation as big as a cruise line. Royal Caribbean reported revenue in 2013 was $7.96 billion (Carnival reported $15.46 billion, and Norwegian reported $2.57 billion). A verdict of a couple of million dollars simply will not change their practices. But we are here to support the fact that justice for Ms. Franza’s father’s untimely death must be sought.
If you have been injured on a cruise line, a cruise line excursion or suffered from the medical negligence of the cruise line medical staff, call the LaBovick Law Group today. We have a team of attorneys that concentrate their practice on maritime matters.
Did you know almost all cruise-related lawsuits must be filed here in sunny Florida? Attorneys: We pay generous cruise line case referral fees to lawyers from all over the country. We want to help your injured clients. Call me today for more information.
